In determining whether to accept a common law marriage as lawful, the VA must apply state law.
Many Veterans live in one of the 16 states that still recognize some form of common law marriage.
What is Common Law Marriage?
Common law marriage is essentially a “marriage by agreement” as opposed to a “marriage under the law”.
In olden days, most folks didn’t have the money to pay for a marriage certificate or ceremony. Additionally, folks that lived in rural areas may not have had access to the individual lawfully permitted to marry a couple. So, they would hold themselves out as married.
The “common law” – or the law of precedent or tradition – will recognize a marriage, generally, when there is “a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.”
Does the VA have to recognize a Common Law Marriage?
There is no marriage certificate for Veterans who hold themselves out to be married under the common law. There is no document formally recognizing the marriage at all.
This creates an issue when a spouse tries to secure Veterans Benefits administered by the VA, or when a Veteran tries to secure compensation rates based on his marital status. What proof will the VA accept that a Veteran and his/her spouse were married under the common law.
The bottom line is that the VA must apply state law. 38 U.S.C. § 103(c) states that for the purposes of obtaining VA benefits under Title 38, the validity of a marriage is determined:
according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.
What if the VA doesn’t properly apply State Law?
The question then becomes whether the VA will properly apply State Law. In Burden v. Shinseki, Fed. Circ. Cause # 2012-7096 (July 16, 2013), the Federal Circuit found that the VA (and the BVA and the CAVC) properly applied Alabama’s law in determining that the Veteran in that case had not proven a common law marriage.
Alabama law, as it is written, requires clear and convincing evidence of several elements to prove a common law marriage. One of those elements is “a public recognition of the existence of the marriage.”
In the Burden case, the VA focused on this element in concluding that Alabama law would not recognize a common law marriage.
I am not an Alabama lawyer, and cannot say whether or not the VA properly applied Alabama law.
However, I have concerns when a Veteran’s spouse provides clear and convincing evidence that the Veteran publicly recognized the existence of a marriage, and the VA instead focuses on the times when the Veteran did not publicly recognize the existence of a marriage (as opposed to denying the public existence of marriage).
I also have concerns when a Court relies on the hearsay statements of a doctor’s notes of what a dead person might have said years ago as evidence to contradict the sworn testimony of a live witness with personal knowledge of the facts.
How to keep the VA from deciding issues of State Law.
But that is neither here nor there.
What you want to know is what do you do if you are trying to argue that you were married under the common law, and you don’t trust the VA to properly interpret your state’s laws?
Consider having a State Court recognize your common law marriage before the VA adjudicates your state’s law.
Once a State Court recognizes the existence of a common law marriage under that state’s law, it is going to be difficult – if not impossible – for the BVA or CAVC to sustain a VA administrative decision finding otherwise.
Consult with a lawyer in your state that is familiar with common law marriages, and how to go about proving a common law marriage in your state’s courts.
As an aside, if you are claiming entitlement to some VA benefit based on Common Law marriage, it is crucial that you know what is in your VA C-File – the VA will look to everything in that file to “disprove” the common law elements…you need to be prepared to counter those arguments, and you can’t do that effectively unless you have a copy of your VA C-File
